On 29 June 2022, the Department of the Navy implemented a Safe-to-Report Policy for victims of sexual assault.  According to the press release, the new policy was implemented for the purpose of “eliminating a critical barrier to service member reporting of sexual assault.” 
Under the policy, a sailor, Marine, cadet, or midshipman who makes an unrestricted report of sexual assault through the Sexual Assault Prevention and Response Office or the Family Advocacy Program will not be disciplined for minor collateral misconduct. The Secretary of the Navy proclaimed that “Choosing to report a sexual assault is already a major decision for a survivor … It is a first step to accessing the services they need and the justice they deserve. Removing this barrier empowers victims and survivors — they should not have to choose whether to implicate themselves by reporting a crime committed against them.”
“Collateral misconduct” refers to victim misconduct associated with the time, place, or circumstance surrounding a sexual assault and is often discovered as a result of the report, investigation or prosecution of the sexual assault. Examples include:
- Underage drinking at or near the time of the sexual assault;
- An unprofessional relationship with the accused, i.e., a relationship that violated law, regulation, policy or custom, at the time of the sexual assault; and
- A violation of lawful orders establishing curfews, off-limit locations, school standards, barracks/dormitory/berthing policies, or similar matters at the time of the sexual assault.
As a civilian defense attorney who has defended numerous service members accused of sexual assaults, I am gravely concerned that this new policy may serve as a motive to submit false complaints of sexual assault. Throughout my career, I have encountered many cases where the alleged victim, for one reason or another, falsely claimed he or she was sexually assaulted. A sex assault case can be very difficult to defend and frequently involves an uncorroborated claim of sexual assault – no injuries, no DNA, no witnesses – nothing, but the accusation itself. The defense attorney needs to search for a motive for a false complaint – for example, the alleged victim is married and engages in a one-night sexual relationship with a sailor. If his or her spouse finds out, it becomes a question if the sex assault complaint is an effort to dodge the spouse’s accusation of adultery.
So now with the new policy – let's look at an officer who has wrongfully engaged in a sexual relationship with an enlisted sailor under his/her supervision. If the sexual contact was consensual, it is a classic case of fraternization. Both the officer and the enlisted sailor have committed a violation of Article 92, Uniform Code of Military Justice, to wit: OPNAVINST 5370.2E, Navy Fraternization Policy. I would expect both individuals to face disciplinary and/or administrative action. However, under the new Safe-to-Report Policy, if the enlisted sailor falsely reports being sexually assaulted by the officer, the enlisted sailor is likely to be protected for his/her “collateral misconduct” of fraternization.
As noted in the press release, the commanding officers, in consultation with their servicing staff judge advocate, must assess whether misconduct was collateral to a report of sexual assault and if mitigating and aggravating circumstances exist. If after considering the circumstances, they determine that the collateral misconduct is minor, the victim shall not be disciplined.
If you are facing military sexual assault charges, the military criminal defense attorneys from McCormack & McCormack can defend your freedom and maximize your chances of securing a desirable outcome for your situation. To find out more about how we can help, contact our firm online or request a free consultation today.